ANALYSIS-In force-feeding detainees, Obama has courts on his side

April 26, 2013|Reuters

By David Ingram and Jane Sutton

WASHINGTON/MIAMI, April 26 (Reuters) - As detainees at theU.S. military prison in Guantanamo Bay, Cuba, press ahead with awidening hunger strike nearly three months old, President BarackObama has come under increasing criticism for his policy offorce-feeding them.

But U.S. law is on his side, an analysis of court rulingsshows.

Most U.S. judges who have examined forced feeding in prisonshave concluded that the measure may violate the rights ofinmates to control their own bodies and to privacy - rightsrooted in the U.S. Constitution and in common law. But they havefound that the needs of operating a prison are more important.

Courts generally view a prison hunger strike as a suicideattempt, and they have ruled wardens have authority to stopsuicide attempts as part of their mandate to preserve order.

"If prisoners were allowed to kill themselves, prisons wouldfind it even more difficult than they do to maintain discipline,because of the effect of a suicide in agitating the otherprisoners," Judge Richard Posner wrote for a Chicago-basedappeals court in 2006 in a case involving a Wisconsin prisonthat punished a disobedient inmate by refusing him food.

As of Thursday, 94 of the 166 prisoners were on a hungerstrike in Guantanamo, meaning they had refused at least nineconsecutive meals. According to a military count, 17 had lostenough weight to be force-fed liquid meals through a nasogastrictube, and three were in the hospital for observation.

Army Lieutenant Colonel Samuel House, a spokesman for thedetention camp, said none of the detainees in the hospital had alife-threatening condition.

Striking inmates began refusing to eat around earlyFebruary, alleging rough handling of the Koran during searchesfor contraband and protesting their prolonged imprisonment.General John Kelly, head of U.S. military forces in LatinAmerica, said assertions about the Koran were untrue.

OPPOSITION VOICED

A New York Times opinion piece last week by Samir Naji alHasan Moqbel, a Yemeni man detained at Guantanamo since 2002,launched debate over the forced feedings. Like others there, hewas captured abroad on suspicion of supporting terrorism.

"I will never forget the first time they passed the feedingtube up my nose. I can't describe how painful it is to beforce-fed this way," Moqbel said in the op-ed dictated throughan interpreter to his lawyers.

As described by Guantanamo officials, a feeding tube islubricated and inserted through the nose down to the stomach forthe two hours it takes liquid food to pass through. In general,hunger strikers continue to drink water.

Human rights advocates and many doctors decry forced feedingof hunger strikers as a violation of personal liberty andmedical ethics with risks of medical complications such asdiscomfort, bleeding, nausea and throat sores. The 65-year-oldWorld Medical Association, made up of 100 national medicalassociations, has said it is unethical and never justified toforce-feed a mentally competent adult.

Carlos Warner, a federal public defender who represents 11Guantanamo detainees, including Kuwaiti hunger striker Faiz alKandari, said detainee lawyers are split on the issue.

Some "have a clear position that the government should notbe force-feeding," and have unsuccessfully made their argumentin federal court in Washington, D.C., Warner said. "Otherlawyers are of the opinion that their clients should not die ofhunger before we have a chance to free them."

The Constitution Project, a U.S. legal group that includesDemocrats and Republicans, said last week that forced feeding atGuantanamo "is a form of abuse and must end."

George Annas, a Boston University professor of health lawwho opposes the forced feeding of hunger strikers on medicalethics grounds, said U.S. law is "very permissive" of thepractice. He described the attitude of American prisons as: "Dowe care about indignity? No, you're a prisoner, we'll treat youthe way we want."

BARRIERS TO LEGAL CHALLENGE

The U.S. military argues forced feeding is not only legalbut also humane. A federal judge agreed in 2009, ruling againstMohammed Bawazir, a Yemeni national held at Guantanamo since2002. Bawazir called forced feeding torture.

Bawazir cited pain he experienced and use of a chair with"six-point restraints" that kept in place his forehead, limbsand torso. U.S. District Judge Gladys Kessler in Washington,D.C., said officials acted out of a need to preserve life.

A further barrier to any suit is the Military CommissionsAct of 2006 which bars U.S. courts from hearing cases aboutGuantanamo detainee treatment. Even if they were to hear achallenge to forced feeding, the overriding evidence is thecourts would rule against the detainees.

International law, which prohibits the inhuman or degradingtreatment of prisoners, is not necessarily any help toGuantanamo detainees either.